Marc Rosenberg

The appellants appealed their convictions for first and second degree murder arising from a firebombing that killed two children.

The Crown's theory was that the primary appellant orchestrated the arson to silence the children's mother, who had accused him of sexual assault, and hired the other appellants to execute the plan.

The Court of Appeal dismissed the appeals, finding no reversible errors in the trial judge's admission of bad character evidence, Vetrovec caution regarding an unsavoury witness, instructions on unlawful object murder, or instructions on post-offence conduct.

The court also upheld the 23-year parole ineligibility period for the appellant convicted of second degree murder.

The accused appealed his convictions for drug and firearms offences, arguing arbitrary detention and racial profiling.

The Crown appealed the sentence, challenging the trial judge's finding that s. 719(3.1) of the Criminal Code, which limits pre-sentence custody credit to 1:1 when bail is denied primarily due to a previous conviction, violates s. 7 of the Charter.

The Court of Appeal dismissed both appeals.

The Court upheld the conviction, finding no arbitrary detention or racial profiling.

On the sentence appeal, the Court held that s. 719(3.1) violates the principle of proportionality in sentencing under s. 7 of the Charter by subjecting identically placed offenders to different periods of incarceration based on bail outcomes, and is not saved by s. 1.

The provision was declared of no force and effect.

The appellant appealed historical sexual offence convictions arising from abuse alleged to have occurred more than 30 years earlier.

The principal issue was whether the trial judge erred in dismissing a pre-trial application for a stay based on unreasonable delay under s. 11(b) of the Charter.

The court reallocated portions of the delay, found approximately 26 months of institutional and Crown delay, and held that although actual prejudice was not established, significant prejudice had to be inferred from the length of the delay and the inadequate justification for it.

Balancing the appellant’s Charter interests against the strong societal interest in a trial on the merits, the court concluded that a stay should have been ordered.

The evidentiary complaints about the recorded police interview were rejected.

Five criminal appeals arising from a major gang investigation challenged informer-privilege procedures, wiretap authorizations, general warrants, covert searches, no-knock take-down warrants, a warrantless vehicle search, jury instructions, and expert opinion evidence.

The court held that an ex parte, in camera first-stage informer privilege hearing was proper, that Criminal Code ss. 186(1.1) and 487.01 were constitutionally valid, and that the wiretap authorizations and general warrants were lawfully issued and executed.

Although one warrantless vehicle search was conducted in an unreasonable manner and one aspect of the conspiracy jury charge was erroneous, the evidence was properly admitted under s. 24(2) and the charge error caused no substantial wrong.

All convictions were upheld and all appeals were dismissed.

The defendants in a personal injury action appealed a costs award of $578,742.28 following a jury trial where the plaintiffs were awarded $144,013.07 in damages.

The defendants had made an offer to settle for $145,000 plus prejudgment interest.

The Court of Appeal found that while the offer was timely, the defendants failed to prove it exceeded the judgment due to uncertainty regarding the prejudgment interest rate.

However, the Court held that the trial judge erred by failing to consider the offer under Rule 49.13 and by ignoring the vast disparity between the amount claimed ($1.9 million) and the amount recovered.

The costs award was wholly disproportionate and was reduced to $100,000.

The appellant appealed his convictions for sexual offences against his stepdaughter, who was six years old at the time of the offences.

At trial, the child refused to testify about the appellant's actions.

The trial judge admitted her videotaped police statement, her preliminary inquiry testimony, and a statement made to an investigating officer.

On appeal, the appellant argued the statements should have been excluded because he could not cross-examine the unresponsive witness.

The Court of Appeal dismissed the appeal, finding the statements were properly admitted under the principled approach to hearsay and that the factors for unresponsive witnesses did not favour exclusion.

The appellant, a young person, was convicted of numerous firearms offences after police found loaded firearms in his bedroom.

He appealed his convictions, arguing that the trial judge erred in refusing to grant a stay of proceedings under s. 24(1) of the Charter due to a 12-day delay in holding his bail hearing, which violated his s. 11(e) rights.

The Court of Appeal dismissed the appeal, holding that the trial judge properly applied the residual category of abuse of process and reasonably concluded that the community's interest in seeing the serious charges disposed of on their merits outweighed the need for a stay.

The Court also found that the trial judge's conclusion that the appellant possessed the firearms was reasonable and supported by the evidence.

The appellants appealed their sentences after their aggravated assault convictions were set aside, leaving only convictions for common assault.

The Court of Appeal found that deference to the trial judge was not warranted given the changed circumstances.

Noting the appellants' youth, first-offender status, lack of serious injury to the victim, and the time elapsed since the offence, the Court granted leave to appeal, allowed the appeals, and imposed conditional discharges with two years of probation and 200 hours of community service.

The Crown appealed the accused's acquittal on charges of sexual assault and sexual interference, arguing the trial judge erred in excluding the accused's police statement.

The trial judge found the statement involuntary because the police offered an improper inducement, suggesting the complainant would only get psychiatric help if the accused confessed.

The Court of Appeal dismissed the appeal, holding that the trial judge applied the correct contextual test for voluntariness under Oickle and Spencer, and his factual findings were entitled to deference.

The appellant appealed a Disposition Order of the Ontario Review Board that granted him a conditional discharge, arguing he should have received an absolute discharge.

The appellant contended the Board erred in finding he represented a significant threat to public safety.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the Board's unanimous decision, which relied on evidence that the appellant would pose a significant risk without the control of a conditional discharge.

The appellant appealed his convictions for discharging a firearm, possession of a firearm while prohibited, and breach of probation, as well as his 10-year global sentence.

He argued the trial judge erred in refusing to put self-defence to the jury, admitting evidence of prior disreputable conduct, and finding his police statement voluntary.

The Court of Appeal dismissed the conviction appeal, finding no air of reality to the self-defence claim and no errors in the evidentiary rulings.

The sentence appeal was also dismissed, as the 10-year sentence fell within the established range for serious firearm offences.

The appellant appealed his convictions for extortion, attempted extortion, and criminal harassment against three of his employees, as well as his three-year custodial sentence.

The appellant had falsely accused the employees of theft and threatened to call the police or immigration authorities unless they paid him large sums of money, obtaining almost $50,000 in total.

The Court of Appeal dismissed the conviction appeal, finding no errors in the trial judge's jury instructions regarding the relation of evidence to issues, similar fact evidence, or the law of extortion and harassment.

The court also dismissed the sentence appeal, finding the three-year sentence fit given the serious nature of the threats, which included leveraging alleged associations with the Iranian Revolutionary Guard.

The appellant appealed convictions for multiple sexual offences involving the minor daughter of his former partner.

The trial judge rejected the appellant’s denial largely based on an assumed failure to respond appropriately when the complainant allegedly asked to touch his penis and on a third party’s out-of-court statement implying knowledge of an improper relationship.

The Court of Appeal held that the first finding lacked evidentiary support because the appellant had never been asked about any response, making the inference unfair.

The court also found the statement was inadmissible hearsay and did not meet the requirements of the principled hearsay exception or the state of mind exception.

Because these errors tainted the credibility analysis, the convictions were set aside and a new trial was ordered.

The appellant was convicted of the first degree murder of his estranged wife.

He appealed the conviction, arguing that the verdict was unreasonable as the evidence did not support findings of planning and deliberation or criminal harassment.

He also argued that a decision tree provided to the jury was misleading and that the trial judge failed to give a proper W.(D.) instruction regarding his testimony.

The Court of Appeal dismissed the appeal, finding that the evidence reasonably supported the verdict on all bases left to the jury, the decision tree was properly contextualized by the trial judge's instructions, and the substance of the W.(D.) principles was adequately conveyed.

The moving party brought a motion pursuant to Rule 59.06 to set aside a previous order of the Court of Appeal.

The court found the motion had no merit, declined to grant an oral hearing, and dismissed the motion.

The court also ordered that the moving party may not file any further documents or communicate with court staff regarding the appeal.

The appellant appealed his conviction for a drug-related offence.

The Court of Appeal found that the trial judge failed to adequately apply the W.(D.) framework to assess the appellant's credibility regarding his knowledge of the presence of cocaine.

The appeal was allowed, the conviction was set aside, and a new trial was ordered.

The appellant clients appealed a judgment that severely limited the assessment of accounts rendered by their former solicitors, Bennett Jones LLP.

The application judge had ruled that because the clients previously relied on the accounts to seek party-and-party costs in an underlying action, seeking to assess those same accounts constituted an abuse of process.

The Court of Appeal allowed the appeal, holding that the doctrine of abuse of process does not prevent a client from having a solicitor's bill assessed even if the costs were previously fixed by a trial court, as the interests and considerations in the two contexts are distinct.

The appellant, a 23-year-old first-time offender, appealed his sentence of 5 years' imprisonment for sexually assaulting two acquaintances on successive dates.

The offences involved planning, violence, threats, and attempted rape.

The Court of Appeal dismissed the appeal, finding that the serious nature of the offences required a penitentiary sentence and that the 5-year sentence was lenient, reflecting the appellant's youth and lack of a prior record.

The appellants appealed the dismissal of their dental malpractice action, arguing that the respondent's fracturing of the appellant's jaw during a wisdom tooth extraction raised an inference of negligence.

The Court of Appeal dismissed the appeal, confirming that the doctrine of res ipsa loquitur no longer applies.

The court found no palpable and overriding error in the trial judge's acceptance of expert evidence that the standard of care was met and that a jaw fracture is a known complication of such surgery, particularly given the appellant's severe periodontal disease.

The Crown appealed the dismissal of its application for certiorari and mandamus to set aside a preliminary inquiry judge's order discharging the respondent, an Emergency Task Force officer, on a charge of manslaughter.

The Crown argued the preliminary inquiry judge exceeded his jurisdiction by weighing the evidence regarding the careless use of a firearm.

The Court of Appeal dismissed the appeal, finding no jurisdictional error.

The preliminary inquiry judge properly engaged in a limited weighing of the circumstantial evidence, and there was no evidence of a marked departure from the standard of care required of an ETF officer.